NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 9 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD SHERMAN, No. 16-99000
Petitioner-Appellant, D.C. No. 2:02-cv-01349-LRH-VCF
v.
MEMORANDUM*
WILLIAM GITTERE, Warden; AARON
DARNELL FORD, Attorney General of
Nevada,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted September 20, 2023
San Francisco, California
Before: GOULD, BADE, and BUMATAY, Circuit Judges.
After a jury trial in Nevada state court, Donald Sherman was convicted of
robbery, burglary, and first-degree murder. After unsuccessful state postconviction
proceedings, Sherman filed a federal habeas petition subject to the Antiterrorism and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Effective Death Penalty Act (“AEDPA”). The district court denied the petition and
granted a certificate of appealability (“COA”) on one claim. We addressed
Sherman’s certified claim in a concurrently published opinion. In this memorandum
disposition, we consider his request to expand the COA to include seven additional
claims.
Under AEDPA, a petitioner seeking a certificate of appealability on the denial
of constitutional rights “must demonstrate that the issues are debatable among jurists
of reason; that a court could resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to proceed further.” Lambright v.
Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (brackets in original) (quoting Barefoot
v. Estelle, 463 U.S. 880, 893 n.4 (1983)) (internal quotation marks omitted). When
a petitioner seeks a COA on the denial of a claim on procedural grounds, the court
must determine whether “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right,” and whether
“jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Id. at 1026 (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)).
We decline to expand the COA.
I.
2
Uncertified Claim #1 – Ineffective Assistance of Counsel Claim Under
Martinez
Sherman first seeks to expand the COA to include the district court’s dismissal
of his ineffective-assistance-of-counsel claim as procedurally defaulted. While
Sherman’s first post-conviction counsel raised at least three ineffective-assistance-
of-trial-counsel subclaims in his first state postconviction petition, Sherman
contends that several subclaims were omitted, which led to them being procedurally
barred. He argues that the district court erred in rejecting his Martinez arguments
because it failed to apply the correct standard for determining whether the claims of
ineffective assistance of counsel had “some merit.” See Martinez v. Ryan, 566 U.S.
1, 17 (2012) (explaining that failure to raise a claim of ineffective assistance of
counsel in an initial-review post-conviction proceeding does not bar a federal habeas
court from considering a substantial claim of ineffective assistance of trial counsel,
if counsel in the initial post-conviction proceeding was ineffective). We review a
district court’s dismissal for procedural default de novo. See Fields v. Calderon,
125 F.3d 757, 759–60 (9th Cir. 1997).
A federal court is precluded from reviewing procedurally defaulted claims
unless the petitioner can establish “cause” for the default and “prejudice” as a result
of the federal violation. Coleman v. Thompson, 501 U.S. 722, 729, 745 (1991). A
petitioner can establish cause and prejudice to overcome the procedural default of
3
an ineffective assistance of trial counsel claim if the petitioner can show that “(1)
post-conviction counsel performed deficiently; (2) ‘there was a reasonable
probability that, absent the deficient performance, the result of the post-conviction
proceedings would have been different’; and (3) the ‘underlying ineffective-
assistance-of-trial-counsel claim is a substantial one.’” Dickinson v. Shinn, 2 F.4th
851, 858 (9th Cir. 2021) (quoting Ramirez v. Ryan, 937 F.3d 1230, 1242 (9th Cir.
2019)). A claim is “substantial” if it has “some merit.” Id. (quoting Martinez v.
Ryan, 566 U.S. 1, 14 (2012)). Because the district court’s dismissal of Sherman’s
claims of ineffective assistance of counsel as procedurally barred is not debatable,
we do not expand the COA to include these claims.1
Sherman raises multiple ineffective-assistance-of-trial-counsel subclaims:
(a) trial counsel failed to effectively litigate the motion in limine excluding evidence
about his ex-girlfriend, Dianne Bauer; (b) trial counsel failed to raise Dianne’s
history of fabricating sexual abuse allegations; (c) trial counsel failed to present
1
The parties dispute whether the evidence submitted in support of Sherman’s
defaulted ineffective assistance of counsel claims in his second post-conviction
proceeding is considered part of the state court record that the federal habeas court
can consider. See Shinn v. Ramirez, 596 U.S. 366, 382 (2022) (holding “that, under
§ 2254(e)(2), a federal habeas court may not conduct an evidentiary hearing or
otherwise consider evidence beyond the state-court record based on ineffective
assistance of state postconviction counsel.”). We need not resolve this issue
because, assuming that this evidence is considered part of the state court record,
Sherman fails to satisfy the Martinez standard for excusing the procedural default of
his claims of ineffective assistance of counsel.
4
testimony about Sherman’s relationship with Dianne and her desire for her father’s
death; (d) trial counsel failed to demonstrate that Dianne lied about contacting law
enforcement about her father’s safety; (e) trial counsel did not move for a new trial
based on Dianne’s false trial testimony; (f) trial counsel failed to present available
mitigating evidence; (g) trial counsel failed to present appropriate expert testimony;
(h) trial counsel did not effectively counter the State’s presentation of Sherman’s
previous murder conviction; and (i) trial counsel failed to rebut the State’s
presentation of future dangerousness. He also claims that trial counsel’s
ineffectiveness should be considered cumulatively. Because “jurists of reason”
would not “find it debatable whether the petition states a valid claim of the denial of
a constitutional right,” or “whether the district court was correct in its procedural
ruling,” we deny a COA on this claim. Lambright, 220 F.3d at 1026.2
Dianne Bauer: On the various subclaims of ineffectiveness in investigating,
impeaching, and litigating issues related to Dianne Bauer, we find no deficient
performance or prejudice. Regarding the motion in limine, the record adequately
shows that trial counsel made a cogent argument against the State’s motion and
presented a detailed offer of proof. Even if trial counsel failed to object to the motion
2
Sherman also claims that the district court improperly dismissed five
ineffective assistance subclaims as “non-cognizable.” Those subclaims involve
issues related to the use of a stun belt, the venire composition, the reasonable doubt
instruction, prosecutorial misconduct, and the penalty-phase instruction. We agree
with the district court that these subclaims are insubstantial.
5
in limine on procedural grounds, the trial court could have excused any error or
excluded the evidence that Sherman presented question-by-question. See Hernandez
v. State, 124 Nev. 639, 647–50 (2008).
Regarding allegations of ineffectiveness related to Dianne’s past claims of
sexual abuse, her failure to contact police about the threat to Dr. Bauer, or her desire
for his death, we see no prejudice. The jury heard that Dianne had manipulated
Sherman based on her desire for her father’s money by claiming that her father
sexually abused her and her daughter. Additionally, while this evidence may explain
why Sherman traveled to Las Vegas, it does not negate premeditation or otherwise
show what happened when he arrived at Dr. Bauer’s house in Las Vegas.
Mitigating Evidence: Sherman next argues that trial counsel did not
investigate and present all reasonably available mitigating evidence regarding his
family’s history of poverty and physical, sexual, and substance abuse or the abuse
he suffered while incarcerated for his prior murder conviction. As Sherman
concedes, however, much of this evidence was cumulative of information that his
trial counsel discovered about his background. As such, “[t]his is not a case in which
the defendant’s attorneys failed to act while potentially powerful mitigating evidence
stared them in the face.” Bobby v. Van Hook, 558 U.S. 4, 11 (2009). Instead, “there
comes a point at which evidence . . . can reasonably be expected to be only
cumulative, and the search for it distractive from more important duties.” Id. To the
6
extent that Sherman argues that counsel was ineffective for failing to present the new
mitigation evidence, he does not explain why it was unreasonable for trial counsel
to decide against presenting additional evidence of his dysfunctional family
background, his family’s violent and addictive nature, and history of sexual and
physical abuse when that evidence could have undermined the defense theory that
Sherman was a good child who was loved by friends and family but who was
manipulated into committing the murder. See Burger v. Kemp, 483 U.S. 776, 789–
94 (1987) (concluding that counsel’s failure to discover and present evidence of
petitioner’s troubled and unstable childhood was not deficient in part because the
evidence “suggest[ed] violent tendencies that are at odds with the defense’s strategy
of portraying the petitioner’s actions on the night of the murder as the result of
[someone else’s] strong influence upon his will”).
Expert Testimony: Sherman further alleges that counsel performed deficiently
by selecting an unlicensed psychologist, Dr. Stephen Pittel, as an expert and by
failing to provide him with all relevant mitigating evidence. In Nevada, however,
an expert does not need to be licensed to qualify as an expert. See Wright v. Las
Vegas Hacienda, Inc., 720 P.2d 696, 697 (Nev. 1986) (“A witness need not be
licensed to practice in a given field in order to be qualified to testify as an expert.”).
And the record does not suggest that trial counsel failed to provide Dr. Pittel with
7
relevant background information or that Dr. Pittel was missing critical information
for his evaluation.
Prior Murder Conviction: Sherman next argues that trial counsel was
ineffective for failing to present evidence minimizing his role during the 1981
murder that led to his prior murder conviction or to impeach the State’s witness on
the conviction. But as the district court found, “trial counsel made a substantial
effort to rebut the State’s evidence related to the Idaho murder.” Indeed, trial counsel
called Idaho prosecutor Phillip Robinson, who testified that Sherman did not
premediate the killing, that his accomplice prepared and planned the robbery and
murder, and that the accomplice was more criminally sophisticated than Sherman.
Sherman argues that trial counsel failed to present other evidence regarding the
details of the Idaho offense, victim impact testimony, or evidence to impeach the
state’s witness. Based on the sentencing transcript in the Idaho case, including
Sherman’s admission that he shot and killed the victim, and Robinson’s testimony,
Sherman has not demonstrated that, but for trial counsel’s failure to investigate and
present additional evidence related to the Idaho murder, there is reasonable
probability that the outcome of the proceeding would have been different. See
Cullen v. Pinholster, 563 U.S. 170, 201 (2011) (taking into account that presenting
certain mitigating evidence could open the door to rebuttal evidence); see Lambright,
220 F.3d at 1026.
8
Future Dangerousness: Sherman also argues that trial counsel was ineffective
for failing to retain an institutionalization expert at the penalty phase to rebut the
State’s argument regarding his future dangerousness. The record shows that
Sherman’s trial counsel considered hiring an institutionalization expert but she could
not recall whether she “had a strategic justification,” for not pursuing such evidence.
This is not enough to “overcome the ‘strong presumption that counsel’s conduct
[fell] within the wide range of reasonable professional assistance.’” Burt v. Titlow,
571 U.S. 12, 23 (2013) (brackets in original) (quoting Strickland v. Washington, 466
U.S. 668, 689 (1984)). Sherman relies on a declaration from Dr. Cunningham to
argue that had trial counsel hired an institutionalization expert, she could have
presented testimony that there was a low probability that Sheman would commit
violent acts in prison. But he has not made a “substantial showing of a ‘reasonable
probability that, but for counsel’s [alleged] unprofessional errors, the result of the
proceeding would have been different.’” Runningeagle v. Ryan, 825 F.3d 970, 982
(9th Cir. 2016). The jury had heard evidence of the circumstances of the crime,
Sherman’s prior murder conviction, and of Sherman’s conduct while in jail awaiting
trial—including planning to escape using violence—and Sherman has not made a
substantial showing of a reasonable likelihood that Dr. Cunningham’s general
testimony would have overcome that evidence and led to a different outcome.
9
Cumulative Error: Sherman finally argues that the district court failed to
consider the cumulative prejudicial effect of the procedurally defaulted ineffective
assistance claims. But “[w]e reject [Sherman’s] cumulative error argument, which
would require us to accumulate a number of trial-level IAC claims that we have
found insubstantial or unsuccessful on the merits.” See Runningeagle, 825 F.3d at
990 n.21.
Uncertified Claim #2 – Brady/Napue Claim
Sherman next seeks to expand the COA over his claim that the prosecution
violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose impeachment
evidence against Dianne Bauer and jailhouse informants Michael Placencia and
Christine Kalter.3 To succeed on a Brady claim, a petitioner must show that the
evidence: (1) is favorable to the accused; (2) was suppressed by the prosecution; and
(3) was material. See Strickler v. Greene, 527 U.S. 263, 281–82 (1999). Evidence
is material “if there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different.” United States
v. Bagley, 473 U.S. 667, 682 (1985). The Nevada Supreme Court concluded that
3
Sherman also alleges that the State failed to disclose exculpatory and
impeachment information regarding Sherman’s prior conviction. This contention,
however, is contained in a single reference and is unsupported by argument or
citation, and we decline to address it. See Humble v. Boeing Co., 305 F.3d 1004,
1012 (9th Cir. 2002) (“Issues raised in a brief but not supported by argument are
deemed abandoned absent manifest injustice.”).
10
Brady was not violated because the undisclosed evidence concerning Dianne Bauer,
Placencia, and Kalter was not material.
Sherman alleges that, contrary to Dianne Bauer’s testimony, the State knew
that she had not notified the Longview Police Department (“LPD”) or the FBI that
Sherman posed a danger to her father. Sherman also alleges that the State failed to
disclose certain LPD files, including (1) investigative notes indicating that officers
spoke with Dianne several times but that she did not inform them that Dr. Bauer was
in danger, and (2) files containing statements from other witnesses that Dianne and
Sherman had planned Dr. Bauer’s murder because Dianne learned that Dr. Bauer
had cut her out of his will.
The Nevada Supreme Court’s conclusion that such evidence was not material
was not contrary to clearly established federal law. The evidence would have been
subject to the trial court’s motion in limine prohibiting Sherman from impeaching
Dianne with extrinsic evidence, which would render the evidence inadmissible. See
Nev. Rev. Stat. § 50.085(3). And Sherman’s convictions were based largely on his
confession to two separate people, the method and time of killing, his actions after
the killing, and his arrest after being found in Dr. Bauer’s car with Dr. Bauer’s
property. Dianne did not provide key evidence of Sherman’s guilt. Thus, the alleged
failure of the State to disclose the evidence against Dianne does not “undermine[]
11
confidence in the outcome of the trial.” See Kyles v. Whitley, 514 U.S. 419, 434
(1995) (citation omitted) (defining materiality).
Sherman next contends that the State failed to disclose that Placencia had a
1991 felony conviction for use of a controlled substance and that Kalter had
conducted controlled drug buys as a confidential informant for the Las Vegas police.
Even under de novo review, we conclude that the failure to disclose Placencia’s 1991
felony conviction and the failure to disclose Kalter’s prior informant status was not
material because Sherman has not shown “there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have
been different.” See Bagley, 473 U.S. at 682. The jury already knew that Placencia
had a history with law enforcement—indeed, he met Sherman when they were both
incarcerated. Additionally, the jury heard evidence that corroborated Placencia’s
statements and independently supported Sherman’s role in the escape plan.
Evidence of Kalter’s history as a paid police informant in other unrelated
investigations has general impeachment value. See Gentry v. Sinclair, 705 F.3d 884,
905 (9th Cir. 2013) (observing that evidence that a jailhouse witness was a paid
informant has impeachment value). Sherman, however, fails to explain how, if this
evidence had been disclosed, there is a reasonable probability that the outcome of
the proceeding would have been different. See Kyles, 514 U.S. at 435. After all, the
12
jury had seen Sherman’s several letters to Kalter which corroborated her accounting
of Sherman’s planned escape attempt.
Sherman alleges that the State failed to disclose that Placencia received
benefits in three pending criminal cases in exchange for his cooperation, including
a deal with the State to release Placencia from custody over a month early in a
misdemeanor case.4 Sherman also alleges that in exchange for Kalter’s cooperation
in Sherman’s case, the State reduced her pending first-degree murder charge to
manslaughter and did not oppose her request for release from custody after her guilty
plea in that case.
The Nevada Supreme Court’s determination that any favorable treatment
received by Placencia or Kalter was not related to their cooperation against Sherman
was not an unreasonable factual determination. See 28 U.S.C. § 2254(d)(2). And
we agree with the district court, “[g]iven [the] strength of . . . corroborating evidence,
Sherman’s allegations about inducements or benefits allegedly received by
Placencia and Kalter, even if true, would not undermine this court’s confidence in
the outcome of Sherman’s trial.” See Strickler, 527 U.S. at 281–82. For these same
4
Sherman fails to support his claim that the State did not disclose that
Placencia was a “career criminal informant who had a history of escape and failure
to appear and often curried favor with prosecutors to avoid incarceration.” He cites
to more than 200 pages of state-court criminal records without identifying how the
records support his assertion that Placencia was a career informant. This argument
is thus forfeited. See Humble, 305 F.3d at 1012.
13
reasons, Sherman has not established that trial counsel was ineffective for failing “to
investigate, uncover, and present evidence that State witnesses received undisclosed
benefits.” See Strickland, 466 U.S. at 691.
Relatedly, Sherman alleges that the State violated Napue v. Illinois, 360 U.S.
264 (1959), when it failed to correct the false testimonies of Dianne and Las Vegas
Police Sergeant Gayland Hammack. To establish a constitutional violation under
Napue, Sherman must demonstrate that: (1) the testimony or evidence is false or
misleading; (2) the prosecution must or should have known that the testimony was
false or misleading; and (3) the challenged testimony is material. See Panah v.
Chappell, 935 F.3d 657, 664 (9th Cir. 2019).
Sherman alleges that the State violated Napue by failing to correct Dianne’s
testimony that she contacted the LPD to warn them that Dr. Bauer was in danger and
Sergeant Hammack’s testimony that Placencia did not receive any benefits outside
of $300. The Nevada Supreme Court acknowledged Sherman’s argument related to
the State’s failure to correct the alleged false testimony but did not specifically
explain its ruling on this issue. We presume the state court decided this issue on the
merits. See Williams, 568 U.S. at 301. And we consider “what arguments or theories
. . . could have supported[] the state court’s decision; and then . . . ask whether it is
possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the Supreme] Court.” Richter,
14
562 U.S. at 102. Fair-minded jurists could conclude that the absence of a record in
the LPD files showing that Dianne informed them of a danger to Dr. Bauer did not
demonstrate that Dianne’s testimony was false. See United States v. Houston, 648
F.3d 806, 814 (9th Cir. 2011) (noting that mere “evidence creating an inference of
falsity” is not enough). Similarly, the record does not indicate that Placencia
received any undisclosed benefits5 and so reasonable jurists could conclude that
Sergeant Hammack’s testimony was not false.
Uncertified Claim #3 – Prosecutorial Misconduct Claim
Sherman seeks to expand the COA to include his claim that the prosecutor
committed numerous instances of misconduct during closing arguments. He argues
that the district court erred by dismissing the entire claim as unexhausted and
procedurally barred. The record reflects that, although Sherman alleged several
5
With respect to this allegation, Sherman argues for the first time in his
supplemental reply brief that the issue on appeal is not the reasonableness of the state
court’s determination of this claim under § 2254(d), but “whether Sherman
demonstrated good cause for discovery under Rule 6(a) of the Rules Governing
Section 2254 Cases.” Aside from a one-sentence request for this court to remand
for discovery and factual development as an alternative remedy, Sherman’s opening
brief discusses the merits of his Brady and Napue claims. His only reference to
discovery, however, is a single sentence asking the court to remand for discovery
and factual development as an alternative remedy. Sherman does not request a
certificate of appealability on the denial of discovery. The discovery issue is not
properly raised. See Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003) (“[W]e
will not ordinarily consider matters on appeal that are not specifically and distinctly
argued in appellant’s opening brief.”) (internal quotation marks and citation
omitted).
15
instances of prosecutorial misconduct in the district court, he only presented one of
those instances on direct appeal. Specifically, the only allegation of prosecutorial
misconduct that Sherman raised that was also presented on direct appeal was that
the prosecutor improperly reminded the jury that Dianne had referred to Sherman as
a “creep” after that testimony had been stricken. While this claim was not
procedurally defaulted and was addressed by Nevada Supreme Court, see Sherman
v. State, 965 P.2d 903, 912 (Nev. 1998), we deny a COA on this claim because jurists
of reason would not find it “debatable whether the petition states a valid claim of the
denial of a constitutional right.” Lambright, 220 F.3d at 1026. A prosecutor’s
improper comments during argument will violate the Constitution only if they “so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation omitted). The
state court reasonably concluded that the prosecutor’s isolated reference to stricken
testimony, which the prosecutor acknowledged was improper and asked the jury to
disregard, did not “infect[] the trial with unfairness.” Id.
Uncertified Claim #4 – Voir Dire
Sherman next seeks to expand the COA to include his claim that the trial
court’s improper comments during voir dire violated his due process and Eighth
Amendment rights. Sherman argues that the trial court improperly stated that the
Bible prescribes the death penalty as punishment, improperly rehabilitated jurors
16
who said that they could not consider a life sentence for capital murderers, informed
potential jurors that they did not have an individual responsibility when issuing a
verdict, and restricted counsel’s voir dire questioning. Sherman also asserts that his
trial counsel was ineffective for failing to object to the trial court’s comments. The
Nevada Supreme Court concluded that the judge’s “reference to religious authority
for capital punishment was inappropriate,” but that Sherman was not prejudiced by
counsel’s failure to challenge the trial court’s remarks.
We assume that de novo review applies to Sherman’s Eighth Amendment
claim. See Ayala v. Wong, 756 F.3d 656, 670 & n. 8 (9th Cir. 2014) (reviewing de
novo a state court’s conclusion of constitutional error and applying Brecht without
addressing the state court’s conclusion of harmlessness), rev’d on other grounds sub
nom. Davis v. Ayala, 576 U.S. 257 (2015)). Sherman provides no authority to
support his argument that a trial court’s comments during voir dire can violate the
Eighth Amendment. Sherman’s reliance on Sandoval v. Calderon, 241 F.3d 765
(9th Cir. 2000) to support his argument is unpersuasive. Sandoval concerns the
comments of a prosecutor during closing argument, that “God sanctioned the death
penalty for people like [the defendant],” that the jury would be “doing what God
says,” and that sentencing the defendant to death might save his soul. Id. at 775–76.
We determined that these arguments violated the Eighth Amendment because they
did not “carefully focus[] the jury on the specific factors it is to consider in reaching
17
a verdict.” Id. at 776. We also noted that the argument that a higher power directed
the imposition of a death sentence transferred the jury’s sense of responsibility. Id.
at 777. In contrast, the challenged comments at issue were made by the trial court
during death qualification of the prospective jurors. The transcripts support the
Nevada Supreme Court’s determination that the trial court’s comments about the
Bible “were limited to determining whether the juror[s] could consider the death
penalty as a possible form of punishment.” See Wainwright v. Witt, 469 U.S. 412,
424 (1985) (clarifying that, in a capital case, a prospective juror may be excused for
cause if the juror’s views on capital punishment would prevent or substantially
impair the performance of his duties as a juror in accordance with his instructions
and his oath (citation omitted)). It is unlikely that the trial court’s comments were
understood by the jury to be a factor for them to consider when reaching a sentencing
decision. Cf. Sandoval, 241 F.3d at 776. In addition, any harm from the trial court’s
comments about the Bible would not have had a “substantial and injurious effect or
influence in determining the jury’s verdict,” Brecht, 507 U.S. at 623, when the
comments were made to the prospective jurors during voir dire and, therefore, were
remote in time from the trial court’s instructions at the guilty and penalty phases and
from the jury’s deliberations, and when the potential jurors involved were not seated
on the jury.
18
Sherman also argues that the trial court inappropriately told potential jurors
that they had no individual responsibility when issuing a verdict in the penalty phase,
in violation of the Supreme Court’s ruling in Caldwell v. Mississippi, 472 U.S. 320
(1985). In Caldwell, the Supreme Court held that a capital sentence is invalid when
the sentencing jury is led to believe that the responsibility for determining the
appropriateness of a death sentence does not rest with the jury. Id. at 323. In
contrast, the trial court here stated that the jurors would make “a judgment” on the
sentence and noted that the jurors would make that decision as members of the jury.
Sherman also argues that the trial court gave “improper” and “deceptive”
hypotheticals to rehabilitate jurors. The challenged hypotheticals that the trial court
gave during voir dire were directed at determining whether the potential jurors could
give equal consideration to the three possible forms of punishment—the death
penalty, life imprisonment without the possibility of parole, and life imprisonment
with the possibility of parole. The trial court properly conducted an inquiry “to
identify unqualified jurors.” See Morgan v. Illinois, 504 U.S. 719, 729 (1992).
“[M]any veniremen simply cannot be asked enough questions to reach the point
where their bias has been made ‘unmistakably clear’; these veniremen may not know
how they will react when faced with imposing the death sentence, or may be unable
to articulate, or may wish to hide their true feelings.” Wainwright, 469 U.S. at 424–
25. “[T]his is why deference must be paid to the trial judge who sees and hears the
19
juror.” Id. at 426. Sherman has not cited any authority that supports his assertion
that the trial court’s hypotheticals violated his due process or Eighth Amendment
rights.
Regarding Sherman’s assertion of ineffective-assistance-of-counsel, we see
no prejudice from the trial counsel’s failure to object to the trial court’s comments.6
Uncertified Claim #5 – First-Degree Murder Statute Vagueness
Sherman requests that we extend the COA to include his claim that Nevada’s
“statutory scheme” for first-degree murder, including its related jury instruction, is
unconstitutionally vague because the Nevada Supreme Court’s interpretation of the
statute erased any distinction between premeditated first-degree murder and
intentional second-degree murder. Under Nevada law, first-degree murder includes
murder perpetrated by “willful, deliberate and premeditated killing.” Nev. Rev. Stat.
§ 200.030(1)(a); Nika v. State, 198 P.3d 839, 842, 845 (Nev. 2009). To the extent
6
In addition to arguing that the trial court made improper comments to the
prospective jurors, Sherman asserts that the trial court impeded defense counsel’s
ability to question them to determine whether they could consider mitigating
evidence. He points to the trial court’s directing defense counsel “to get to the real
question” and “cut[ting] off” questioning about whether a person’s background and
upbringing impacted their culpability. Sherman does not support this claim with
citation to any authority and has not shown that reasonable jurists would find it
debatable whether the trial court denied a constitutional right. See Jones v. Gomez,
66 F.3d 199, 204–05 (9th Cir. 1995) (stating that conclusory allegations are
insufficient to support habeas relief); see also See Mu’Min v. Virginia, 500 U.S. 415,
424 (1991) (noting that trial courts have “great latitude in deciding what questions
should be asked on voir dire,” including restricting inquiries of counsel).
20
that Sherman’s argument is understood as challenging the statute itself, he waived
this issue by failing to properly present it in his operative petition for writ of habeas
corpus filed in the district court. See Allen v. Ornoski, 435 F.3d 946, 960 (9th Cir.
2006); see also Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994). At
the time of Sherman’s 1997 trial, the jury instruction on premeditation allowed a
jury to conclude that a murder was “willful, deliberate and premeditated” if it found
premeditation. Nika, 198 P.3d 839 at 844–47 (discussing the so-called Kazalyn
instruction). The Nevada Supreme Court reasonably determined that Sherman’s
challenge to the jury instruction failed.
The instruction accurately stated Nevada law at the time of Sherman’s trial.
Id. Even if we assume that the jury instruction on first-degree murder failed to
differentiate between premeditation and intentional second-degree murder, it is not
debatable whether the error had a substantial or injurious effect because the trial
court gave additional jury instructions that differentiated between first- and second-
degree murder. See Lambright, 220 F.3d at 1025. While first-degree murder
required premeditation, second-degree murder did not. Constitutional errors do not
warrant habeas relief except when they are prejudicial or structural, Brecht v.
Abrahamson, 507 U.S. 619, 629–30 (1993), and Sherman cites no cases when we
have found vagueness errors to be structural in the habeas context.
Uncertified Claim #6 – Sentence
21
Sherman seeks to expand the COA to include three alleged violations of his
Eighth Amendment and Fourteenth Amendment rights to a reliable sentence. He
argues that the Nevada Supreme Court failed to provide close appellate scrutiny of
his death sentence, that the State introduced improper victim impact testimony, and
that the prior murder statutory aggravating circumstance improperly relied on a
juvenile conviction.
After the Nevada Supreme Court invalidated two of Sherman’s aggravating
factors, it reweighed the two remaining aggravating factors, along with the
mitigation evidence presented at trial, and found that the jury still would have found
Sherman eligible for the death penalty. When a death sentence is based in part on
an invalid aggravating factor, an appellate court can uphold the sentence if it either
reweighs the aggravators and mitigators or reviews the sentence for harmless error.
See Clemons v. Mississippi, 494 U.S. 738, 741, 751–54 (1990). Sherman argues that
the Nevada Supreme Court overlooked the cumulative effect of the errors it
identified on direct appeal when reviewing the sentence for harmless error.
First, Sherman does not cite authority to support his contention that evaluating
harmless error for one issue requires or permits cumulative error analysis of all errors
in that evaluation. Second, Sherman does not explain how or why guilt phase errors
should cumulate with penalty phase errors, and Nevada caselaw does not appear to
allow cumulation of errors across different phases of trial. See Jeremias v. State,
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412 P.3d 43, 55 (Nev. 2018) (“Although we have identified several arguable errors,
they occurred at different portions of the proceedings (jury selection, the guilt phase,
and the penalty phase). Jeremias offers no explanation as to whether, or how, this
court should cumulate errors across different phases of a criminal trial.”). Third,
Sherman is incorrect that the Nevada Supreme Court was required to examine all
available mitigating evidence, including evidence adduced post-trial, after ruling an
aggravating factor invalid. As we have said, “[u]nder Clemons, the state appellate
court reweighs aggravating and mitigating circumstances that have already been
found by a jury to exist.” Valerio v. Crawford, 306 F.3d 742, 757 (9th Cir. 2002)
(en banc).
Sherman claims that the Nevada Supreme Court violated his right to equal
protection because it has previously considered new mitigating evidence not
presented at trial on reweighing in other cases. Sherman cites State v. Bennett, 81
P.3d 1 (Nev. 2003) and State v. Haberstroh, 69 P.3d 676 (Nev. 2003). But those
cases are not similarly situated to Sherman’s case. In Bennett, the Nevada court
found several Brady violations and its Brady analysis required consideration of the
undisclosed evidence to determine whether it was material to establish prejudice
under the state law cause and prejudice standards to excuse a procedural bar to
review of a postconviction petition. 81 P.3d at 8. But here, the Nevada Supreme
Court found no Brady violation; therefore, Sherman has not demonstrated that he
23
was similarly situated to the petitioner in Bennett. In Haberstroh, the Nevada
Supreme Court simply observed that the petitioner presented new mitigation
evidence related to a claim of ineffective assistance counsel in the penalty phase.
Haberstroh, 69 P.3d at 683 n. 22. The court remanded for resentencing because it
could not say the jury’s consideration of an invalid aggravating factor was harmless.
Id. at 683–84. Contrary to Sherman’s claim, the court in Haberstroh did not
expressly mandate that the reviewing state court consider new evidence in
postconviction proceedings. Id.
Sherman also argues that the State elicited improper victim-impact evidence
during the penalty phase about the victim from the 1981 Idaho murder. The State
elicited testimony that the victim’s family and community were “incensed” after the
murder and that the victim was a “nice man.” Sherman acknowledges that evidence
about the victim and the impact of a defendant’s actions on the family of the victim
of a crime for which a defendant is on trial may be admissible during the penalty
phase. See Payne v. Tennessee, 501 U.S. 808, 827 (1991). He argues that the victim
impact evidence related to the victim of a prior murder falls outside of the scope of
Payne. Sherman does not, however, present any clearly established law prohibiting
victim-impact testimony from a previous crime under the Eighth Amendment. As
such, Sherman is not entitled to relief under AEDPA. See Brewer v. Hall, 378 F.3d
952, 955 (9th Cir. 2004).
24
Lastly, we consider Sherman’s claim that the State improperly relied on his
juvenile conviction in Idaho to support the prior-murder aggravating circumstance.
He cites Roper v. Simmons, 543 U.S. 551 (2005), to support the assertion that using
his juvenile conviction to expose him to death eligibility is unconstitutional. Roper
held that the Eighth Amendment prohibits imposing the death penalty on juvenile
offenders under eighteen. 543 U.S. at 568. It does not establish that a prior juvenile
conviction may not form the basis for an aggravating factor in a capital case. See
Melton v. Sec’y, Fla. Dep’t Corrs., 778 F.3d 1234, 1237 (11th Cir. 2015)
(concluding that neither Roper nor any other Supreme Court precedent “suggests
that a prior conviction from youth may not form the basis for an aggravating factor
in a capital case.”) Because there is no clearly established law on this issue, under
AEDPA, Sherman cannot be entitled to relief. See Brewer, 378 F.3d at 955. We
deny Sherman’s request for a COA on this claim because its merit is not debatable.
See Lambright, 220 F.3d at 1025.
Uncertified Claim #7 – Cumulative Error
Sherman lastly argues that the cumulative impact of errors at trial, on appeal,
and in postconviction proceedings violated his constitutional rights and had a
substantial and injurious effect on the jury’s verdict. In denying Sherman’s motion
for reconsideration, the district court correctly noted that the cumulative-error claim
was not exhausted because he failed to fairly present it to the Nevada courts as a
25
separate claim. See Wooten v. Kirkland, 540 F.3d 1019, 1025–26 (9th Cir. 2008).
A claim of cumulative error must be exhausted in state court. Id. Sherman does not
acknowledge the district court’s procedural ruling or dispute that he failed to
properly present a claim of cumulative error to the state court. Additionally, he has
not presented any argument to excuse the procedural bar to federal habeas review of
this claim. Accordingly, we deny his request to expand the COA to include this
claim because “jurists of reason” would not “find it debatable whether the district
court was correct in his procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000).
II.
Motion for Judicial Notice
We grant Sherman’s motion to take judicial notice of a copy of his trial
transcript. Dkt. No. 68. The transcript was admitted as an exhibit at trial, both
parties refer to it in their appellate briefs, and the State does not dispute that the
document is an accurate copy of the admitted exhibit. See Harris v. Cnty. of Orange,
682 F.3d 1126, 1131–32 (9th Cir. 2012) (“We may take judicial notice of undisputed
matters of public record, including documents on file in federal or state courts.”
(citations omitted)).
III.
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Based on the foregoing, we deny Sherman’s request to expand the COA to
include the seven uncertified issues. We also grant the motion for judicial notice.
AFFIRMED.
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Donald Sherman v. William Gittere
Combined Opinion